England and Wales, except that paragraph 16(1) of Schedule 1 and paragraph 15(3) of Schedule 4 extend to the United Kingdom and, subject to any provision made in Schedule 6, the amendments and repeals made by Schedules 6 and 7 have the same extent as the enactments to which they relate.[2]

The Mental Capacity Act 2005 (c 9) is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.[3]

The five principles are outlined in the Section 1 of the Act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.

1. A person must be assumed to have capacity unless it is established that he/she lacks capacity.

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.

3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.

4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/ her best interests.

5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.[4]

The Act makes provision for people to plan ahead for a time when they may need support. This introduces advanced decisions to refuse treatment.

The Act is decision specific in that it deals with difficulties a person may have with a particular issue.

The Act upholds the principle of Best Interest for the individual concerned.

A Court of Protection will help with difficult decisions. The Office of the Public Guardian (formerly Public Guardianship Office), the administrative arm of the Court of Protection, will help the Act work.

In response to the ruling by the European Court of Human Rights in HL v UK (2004) (the 'Bournewood' judgment) the Act was amended by the Mental Health Act 2007 in July that year. These additions are known as the Deprivation of Liberty Safeguards (DoLS), and were implemented in April 2009.[5] These amendments created administrative procedures to ensure the Act's processes are observed in cases of adults who are, or may be, deprived of their liberty in care homes or hospitals, thus protecting health and social care providers from prosecution under human rights legislation.[6]

Key elements of the DoLS are that the person must be provided with a representative and given the right to challenge the deprivation of liberty through the Court of Protection, and that there must be a mechanism for the deprivation of liberty to be reviewed and monitored regularly.[7]